Thomas B. Bryant, to His Own Use and to the Use of Liberty Mutual Insurance Company v. Partenreederei-Ernest Russ and Oriole Ship Ceiling Co., Inc. ( 1965 )

J. SPENCER BELL, Circuit Judge:

This case is here on appeal for the second time. On the first appeal we were concerned with the issue of liability. Finding the vessel on which Bryant was injured while working as a ship ceiler to be unseaworthy, this court set aside the judgment entered by the District Court exonerating the shipowner, Partenreederei-Ernest Russ, of liability and remanded the case “with directions to enter judgment for the plaintiff [Bryant] in an amount to be determined by the said district court.” Bryant v. Partenreederei-Ernest Russ, 330 F.2d 185, 190 (4 Cir. 1964). On remand, following arguments by counsel based on evidence already in the record, the District Court found that $24,000 would adequately compensate Bryant for the damages he had sustained, but that Bryant’s own negligence had contributed to his injuries to the extent of fifty per cent (50%). Consequently, a judgment for $12,000 and costs was entered for Bryant against Partenreederei.¹

Appealing from this judgment in his favor, Bryant contends that the specific remand by this court to the lower court on the first appeal precluded the lower court from considering the issue of contributory negligence; that even assuming the lower court could consider the issue the facts in the record do not support the finding made; and that the damages awarded him are grossly inadequate and inequitable.

Even though an injured party’s right of recovery is based on unseaworthiness, contributory negligence, if asserted in defense, presents an issue which must be resolved in granting relief since under the established admiralty rule a finding of contributory negligence is properly considered in mitigation of damages. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 429, 59 S.Ct. 262, 83 L.Ed. 265 (1939); The Arizona v. Anelich, 298 U.S. 110, 122, 56 S.Ct. 707, 80 L.Ed. 1075 (1936); The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586 (1890); Ross v. S. S. Zeeland, 240 F.2d 820 (4 Cir. 1957); Louviere v. Fidelity and Cas. Co., 210 F.Supp. 260 (W.D.La. 1962); Norris, Maritime Personal Injuries § 42 (1959). When this court remanded the case for the express purpose of determining damages at that stage of the proceedings the question of Bryant’s contribution to his injuries by his own negligence, although raised, had not been resolved. The District Court in its earlier order had specifically refrained from ruling on the damages issue believing such a ruling unnecessary in view of its holding that Partenreederei was not liable to Biyant either on the theory of unseaworthiness or negligence. This court, as is clear from its opinion in 330 F.2d at 185, did not consider or discuss the issue. Under these circumstances we think the issue of contributory negligence was properly considered by the District Court in determining and awarding damages.

The computation of total damages sustained, though modest, is not clearly erroneous; but we think there is no foundation in the record for a finding of contributory negligence. Concededly, in attempting to hammer the board into place the appellant did only what other workers in similar circumstances did habitually. The District Court expressly found that the way in which Bryant was performing his work was not in any way different from the normal and customary manner in which such work was conducted; that it often became necessary for a man to stand on the hatch coaming to drive in the boards and that this was customary procedure in fitting precut grain board. This was not negligence, and to call it contributory negligence is tantamount to charging the plaintiff with assumption of risk under another name. See Smith v. United States, 336 F.2d 165, 168 (4 Cir. 1964); Mason v. Mathiasen Tanker Industries, 298 F.2d 28, 31-33 (4 Cir. 1962). Applying the clearly erroneous rule, we conclude that a mistake has been committed in reducing by fifty per cent (50%) the estimated damages of $24,000. The judgment will be vacated and the case remanded for entry of a judgment not inconsistent with this opinion.

Remanded.

1 . In footnote 1, 330 F.2d at 186, this court noted that the District Court should consider on remand Partenreederei’s claim for indemnity against Oriole Ship Ceiling Company, Incorporated, Bryant’s employer, and Oriole’s claim for indemnity against Bryant. Accordingly, the District Court as part of the present judgment appealed from, dismissed Oriole’s claim against Bryant and by consent of the interested parties granted Partenreederei a claim against Oriole for the total amount of damages awarded to Bryant and costs. These holdings are not involved in this appeal.